Gujarat High Court

Kamleshbhai Dalpatbhai Patel vs Jayeshkumar Manilal Damor on 9 September, 2024

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                            C/FA/4860/2022                                        JUDGMENT DATED: 09/09/2024

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/FIRST APPEAL NO. 4860 of 2022


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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                       1     Whether Reporters of Local Papers may be allowed                            No
                             to see the judgment ?

                       2     To be referred to the Reporter or not ?                                     No

                       3     Whether their Lordships wish to see the fair copy                           No
                             of the judgment ?

                       4     Whether this case involves a substantial question                           No
                             of law as to the interpretation of the Constitution
                             of India or any order made thereunder ?

                       ==========================================================
                                                KAMLESHBHAI DALPATBHAI PATEL
                                                           Versus
                                             JAYESHKUMAR MANILAL DAMOR & ORS.
                       ==========================================================
                       Appearance:
                       NISHIT A BHALODI(9597) for the Appellant(s) No. 1
                       MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
                       RULE SERVED for the Defendant(s) No. 1,2
                       ==========================================================

                           CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 09/09/2024
                                                             ORAL JUDGMENT

1. The present First Appeal, under Section 173 of

Motor Vehicles Act, 1988, is preferred by the appellant -

claimant, being aggrieved and dissatisfied with the

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judgment and award dated 15.02.2021 passed by the

Motor Accident Claims Tribunal (Aux.), Panchmahals at

Godhra in Motor Accident Claim Petition No.991 of 2014,

by which the Tribunal has awarded compensation of

Rs.2,38,862/- with 9% per annum interest to the

claimant/s, holding opponents liable, jointly and severally.

2. Brief facts of the case as per the case of the

appellant are as under:

2.1 On 24.07.2014, applicant was standing at the side

of the Road Chhariya village with his Motorcycle. At

that point of time, at about 13:00 Hrs., the Opponent

No.1 came by driving his Vehicle i.e. TOOFAN GJ-09 BB-1481 in rash and negligent manner with an excessive

speed and dashed with the Motorcycle. In the said

accident, the applicant sustained serious injuries with

Fracture. Hence, claim petition has been preferred.

2.2 After considering the documentary as well as oral

evidence and submissions made at the bar, the Tribunal

has partly allowed the claim petition by awarding

compensation as noted above.

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2.3. Being aggrieved and dissatisfied with the impugned

judgment and award passed by the Tribunal, the present

appeal is preferred by the claimant for enhancement.

3. Learned advocate for the appellant - claimant has

submitted that the Tribunal has committed an error in

not properly calculating the amount of compensation. It

is submitted that amount awarded is on lower side as

the Tribunal has not properly considered the aspect of

prospective income as well as negligence. It is submitted

that the Tribunal has rightly considered the monthly

income of the injured Rs.5,940/- after considering the

material available on the record and taking into account the nature of work of the injured. It is submitted that

considering decision of the Hon'ble Apex Court in the

case of National Insurance Company Limited versus

Pranay Shethi reported in (2017) 16 SCC 680, as well as

taking into account the age of the injured, addition to

the extent of 40% may be granted in monthly income of

the injured. It is submitted that the Tribunal has rightly

awarded the compensation under different heads, except

the above raised. It is submitted that the appropriate

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enhancement be granted by modifying the award

impugned. It is submitted that the appeal may be

allowed.

4. Per contra, learned advocate for respondent No.3 -

insurance company has submitted that the impugned

judgment and award passed by the Tribunal is just and

proper. It is submitted that the Tribunal has rightly

considered the income of the injured. Furthermore, it is

submitted that the Tribunal has rightly considered the

compensation towards pain, shock and suffering. It is

submitted that the Tribunal has rightly awarded amount

towards special diet, attendant charges, and attendant

charges. It is also submitted that considering the facts and circumstances of the present, the Tribunal has

rightly not awarded any amount towards loss of future

prospective income. It is also submitted that no

interference is required in the impugned award. However,

from the submissions made by learned advocate for the

appellant that the Tribunal has committed certain errors,

on this aspect, learned advocate for the respondent/s has

submitted that if this Court feels that there is some

error in calculation of the amount in view of settled

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position of law, in awarding compensation by the

Tribunal, then the Court may pass appropriate order by

considering the submissions made by him/her, in the

interest of justice.

5. It is noteworthy to mention that the provisions of

the Motor Vehicles Act, 1988 which gives paramount

importance to the concept of 'just and fair' compensation.

It is a beneficial legislation which has been framed with

the object of providing relief to the victims or their

families. Section 168 of the Motor Vehicles Act deals

with the concept of 'just compensation' which ought to be

determined on the foundation of fairness, reasonableness

and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be

made by the Court to award just and fair compensation

irrespective of the amount claimed by the claimant/s.

6.1 I have heard the learned advocates for the

respective parties and considered the submissions made

by the rival parties. I have perused the record and

proceedings of the Tribunal. I have gone through the

impugned judgment and award passed by the Tribunal.

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It is noted that the claimant has by and large claimed

enhancement towards prospective income and negligence

only.

6.2 It transpires that the Tribunal has taken into

consideration the monthly income of the claimant

Rs.5,940/-, which the Tribunal has rightly considered

after considering the documentary evidences available on

the record, and the same is not disputed by learned

advocate for the appellant. Furthermore, considering

various above-mentioned judgments of the Hon'ble Apex

and taking into account the age of the claimant at the

time of accident, i.e., 24 years, addition to the extent of

40% is required to be granted in the monthly income. Therefore, it would come to Rs.8,316/- towards prospective

income. It is required to take note of the fact that

learned advocate for the appellant has not disputed

multiplier and disability considered by the Tribunal.

Otherwise also, the Tribunal has rightly considered those

aspects. Therefore, Rs.8,316/- x 18% x 12 (annual) x 18

(multiplier) would come to Rs.3,23,326/- which would be

the future loss of income of the claimant.

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6.3 Furthermore, under the other heads, the amount

awarded by the Tribunal are not disputed by the

claimant in the present case. Otherwise also, the

Tribunal has rightly considered the amount of

compensation under other heads. Furthermore, considering

the Panchnama, F.I.R. as well as considering the fact

the the present appellant was travelling as a pillion

rider, hence, the present case is a case of composite

negligence and taking into account facts of the present

case, no contributory negligence is required to be

attributed to the present appellant.

6.4 Thus, the appellant - claimant is entitled to get the

following final amount as compensation :

                                                   Particulars                             Amount (Rs.)

                             Future loss of income                                                 3,23,326/-

                             Actual loss of income                                                    11,880/-

                             Pain, shock and suffering                                                  5,000/-

                             Medical expenses                                                         45,750/-

                             Special diet, transportation,                                              5,000/-

                             attendant charges






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                             C/FA/4860/2022                                            JUDGMENT DATED: 09/09/2024

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                                                                                 Total...                  3,90,956/-

                             Less : Amount which is already                                              2,38,862/-

                             awarded

                             Additional amount which is awarded                                          1,15,094/-

7. Therefore, I hold that the claimant/s are entitled to

get the total amount of compensation of Rs.3,90,956/- with 9% p.a. interest from the date of filing the claim

petition till its realisation, which would meet the ends of

justice. Rest of the direction(s) of the Tribunal shall

remain same. The Tribunal has already awarded

Rs.2,38,862/- and, therefore, remaining amount of

Rs.1,15,094/- would be the enhanced amount of

compensation payable to the claimant/s.

8. For the reasons recorded above, the following order

is passed.

8.1 The present appeal is allowed to the aforesaid

extent.